Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether to extend time - application dismissed

[1] This decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (Cth) ('the Act'). The Application was made by Ms Xian Mo. The Respondent Employer is Christian Outreach Centre (the Centre).

• [2] The Application was filed on 11 December 2025, and it indicated that the date of the Ms Mo's dismissal was 16 October 2025.[1] The Centre did not file a response to the Application, nor did I consider it necessary for the Centre to do so at this stage. Section 394(2) of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Ms Mo accepts that her application was filed outside the 21-day timeframe for lodgement of the application.[2] Ms Mo seeks that the Commission allow a further period of time for the application to be made.

[3] For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

• [4] Ms Mo commenced employment with the Centre in April 2018.[3] Ms Mo's employment was terminated with effect on 17 October 2025.[4] I have determined, on the evidence before me that 17 October was the date of termination. It is also apparent from Ms Mo's submissions that she understood 17 October 2025 to be her final day of work. The 21-day statutory timeframe for filing Ms Mo's application for an unfair dismissal remedy therefore expired at midnight on 7‎ ‎November‎ ‎2025. Ms Mo's application was filed with the Commission on 11 December 2025 (34 days late). The application was therefore lodged outside of the statutory timeframe.

• [5] The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[5] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.

• [6] Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[6]

[7] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position.

Reason for the delay: s 394(3)(a)

• [9] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[7] or reasonable[8] explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[9]

• [10] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application has expired.[10] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[11]

• [11] Ms Mo's submissions as to the reason for the delay may be summarised as follows:[12]

1. First, she states that she was overseas in China from 19 October 2025 to 30 November 2025, during which time she was unable to access Gmail, Facebook, or messages, and therefore did not receive any communications from the employer.

1. Second, she submits that upon returning to Australia on 1 December 2025, she promptly contacted the Fair Work Commission. She states that she made further enquiries, including emailing and telephoning the Commission on 5 December 2025. Finally, she submits that, following that guidance received from the Commission's Unfair Dismissal Team, she lodged her application on 11 December 2025.

[12] Even if I were to accept that the Ms Mo was unable to lodge an unfair dismissal application while she was in China, there remains no satisfactory explanation as to why she did not lodge the Application between 17 October and 19 October. During that period, she was aware of her dismissal and ought reasonably to have appreciated that she would be unable to lodge the application while overseas.

[13] Further, upon her return to Australia, the Applicant did not lodge her application until 11 Dec ember 2025, some 11 days after her arrival. In the absence of a compelling explanation for this additional delay, this also weighs against a finding that the delay was reasonable.

• [14] For completeness and noting the Ms Mo's submission that she was unaware of her rights under the Act, I note that it is well established that ignorance of one's rights will not usually provide an acceptable reason for the delay.[13]

• [15] The above reason does not satisfactorily explain the entirety of the delay, nor does it demonstrate circumstances that were out of the ordinary course, or unusual, or special, or uncommon so as to be characterised as exceptional.[14] I am not satisfied that exceptional circumstances existed.

[16] For the reasons given, I do not find that the matters relied upon by Ms Mo as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)

[17] Ms Mo says that she was notified of her dismissal before it took effect on 17 October 2025. Ms Mo therefore had 21 days to lodge her application for an unfair dismissal remedy from this date. This weighs against the granting of an extension.

Action taken by the person to dispute the dismissal: s 394(3)(c)

• [18] I acknowledge Ms Mo made efforts to dispute her dismissal in the meeting held on 16 October 2026, however, I have been provided no evidence to suggest that Ms Mo made any attempts to dispute her dismissal once determined once it had been affected, as such, the Centre was not on notice that the dismissal was actively contested by Ms Mo.[15] This consideration weighs against the granting of an extension.

[19] I do not consider that any prejudice to the Centre would arise if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the granting of an extension of time. I consider this to be a neutral consideration.

• [20] For the consideration in s 394(3)(e) to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[16] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Ms Mo's unfair dismissal application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[17] I consider this to be a neutral consideration.

Fairness as between the person and other persons in a similar position: s 394(3)(f)

[21] This consideration concerns consistency with other relevant cases to ensure fairness between Ms Mo and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration.

• [22] The statutory time limit that applies to the exercise of a person's right to bring an unfair dismissal application reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 394(3) of the Act establishes a high hurdle for an applicant for an extension of time.[18] Regardless of the length of the delay, where an application is lodged outside the statutory time limit, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.

[23] In this case, there are no matters that weigh in favour of granting an extension of time. Ms Mo has not provided an acceptable or reasonable explanation for the delay, nor did she take any action to place the respondent on notice that the dismissal was contested (other than by lodging this application). These matters, together with the consideration in s 394(3)(b), weigh against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances, either when the various circumstances are considered individually or together.

[24] As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Ms Mo's application may be made is not enlivened. Ms Mo's unfair dismissal application is therefore dismissed. I order accordingly.

[2] Form F2 dated 11 December 2025; Form F2 dated 12 December 2025.

[4] Ibid; Applicant's Submissions to Deputy President Easton dated 17 March 2026.

[5] [2011] FWAFB 975, 203 IR 1.

[7] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9].

[8] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16].

[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39].

[10] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40].

[11] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12].

[12] Form F2 dated 11 December 2025; Form F2 dated 12 December 2025; Applicant's Submissions to Deputy President Easton dated 17 March 2026.

[13] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1 at [14].

[14] [2011] FWAFB 975, 203 IR 1.

[15] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298.

[16] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71].

[17] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14].

[18] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21].

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